PART 5: RECOMMENDATIONS
5.3 Good-faith principle
section 172(1)(a) and set the decisions aside. The good-faith principle, like Boonzaier’s clean hands doctrine, is discussed below.
delayed legality reviews, like the one under PAJA, would not be a foreign or unreasonable concept. In fact, it will be a step closer to reducing the divide that currently exists between PAJA and legality reviews. Currently, a litigant under PAJA whose delay exceeds the 180- day bar has to rebut a presumption that the delay is unreasonable. Whereas a litigant employing legality review has no such obstacle. This is one step to harmonising the pathways to reviews.
The court in Buffalo City found the municipality’s conduct to be in bad faith. Had it acted in a way that indicated an honest effort to rectify past unlawfulness, the court would have had a basis to overlook the delay.254 The court had done well to recognise and call out bad faith.
However, that alone should not be the only dominant factor in determining the amount of relief granted. It should serves as a qualifier to the clean-hands principle I am proposing.
5.4. The Narrative must be Re-written.
As it has been noted above, there is a need for a good faith principle to be developed. In addition to that, courts should generally be perceived to have zero tolerance for scrupulous self-serving reviews. A certain narrative regarding self-reviews is driven by the attitude of the court, which has a bearing on how the court is perceived by the public. I believe a change in the narrative may be beneficial towards the development and success of the good-faith principle. That change lies in the language of the court and how the court treats these types of litigants. Currently, the impression is that decisions by the state to enter into contracts can be easily undone by launching review proceedings and getting the court to set them aside. The new narrative should be that courts will only be sympathetic to state organs launching self- serving delayed reviews when they are in the process of cleaning house. In my view, courts should make it abundantly clear that delayed mala-fide self-serving reviews are contrary to
254 Supra note 19 para 99.
the rule of law. They should unequivocally denounce this practice. I believe that would send a clear and strong message to state actors to tread carefully when dealing with the public purse.
Depending on the gravity of the state actors' conduct, courts may even use their broad remedial powers to impose personal cost orders on erratic state officials. Vos makes a similar suggestion of piercing the shield of the public office veil in holding public officials personally liable for costs.255 With this suggested approach of holding public officials personally liable, he is hopeful that public servants will tread with caution when carrying out official responsibilities.256 On the other hand, Bishop cautions against what he refers to as an "errant approach to cost" as it might deter prospective litigants and the consequences will be of constitutional violations going unremedied and lesser constitutional disputes adjudicated by courts.257 Bishop writes that the Constitutional Court has shifted away from its traditional approach to costs.258
In Black Sash Trust and Another v Minister of Social Development and Others,259 the court made a very bold and scathing attack on the Minister of Social Development. It found the social assistance programme was one of the signature achievements of democracy, and the Minister had placed that achievement in jeopardy.260 The court held that SASSA261 and the Minister were liable in their official capacity for the costs. However, the court found a
255 W Vos “Personal cost orders: Protecting the Public Purse “(2020) 31 Stellenbosch law Review 138 at 140.
256 Ibid.
257 M Bishop “Costs” in Stu Woolman et al The Constitutional Law of South Africa 2 ed 6 – 1.
258 See Ibid 6 - 1 & chapter6-page 2. Bishop explains the traditional approach as when a private person is called upon to defend a frivolous claim, she could not be expected to bear the legal costs of defending the action. He suggests that even though the Constitutional Court has abandoned this approach, it however remains as a basis towards imposing cots awards. He adds that the Constitutional Court has also abandoned the ‘loser pays’ principle as often it is outweighed by other factors.
Also see pages 6 - 4 to 6 - 6 for the Constitutional Court’s approach to costs in a classified manner.
259 Black Sash Trust v Minister of Social Development and Others ( Freedom Under Law Intervening) 2018 (12)BCLR 1472 (CC).
260 Ibid para 1.
261 South African Social Security Agency. This department gives effect to s 27 of The Constitution by ensuring the provision of social security services to the vulnerable.
possibility that an individual's conduct may have played a role in the matter.262 The court explained that the Minister had the primary responsibility and constitutional obligation to ensure that SASSA delivered on its constitutional mandate. It found that there was very little that could have been done by the CEO in the Minister’s direction.263
The court in Buffalo City scrutinised the conduct of the municipality. It held that while a court may be lenient in overlooking a delay where a state organ attempts to put its house in order, the opposite cannot be said when it continues to act unconstitutionally by settling an agreement unlawfully. The municipality was found to have disregarded its constitutional obligations. Its conduct was marred by dishonesty and could be tolerated. The municipality was acting in bad faith and in breach of its constitutional obligations.264 I agree that this is the type of message that the courts should convey in relation to state actors acting in bad faith.
The new narrative should be that the courts have zero sympathy for maladministration and corruption. That should send a stern warning to those dealing with the public purse. Boonzaier argues that better safeguards are required rather than relying on the possibility that the epidemic of these cases may fail on the merits. Arbitrary and self-seeking governance cannot be given a
“free pass by overlooking an unreasonable delay.”265
5.5 Non-absoluteness of section 172 and Exercising Caution when Developing the Common Law in terms of section 173 of the Constitution
It is my view that the Constitutional Court in Gijima has effectively developed the common law on the basis of section 172 of the Constitution. As I have argued, the court altered the
262 Supra note 259 para 72.
263 Ibid para 73.
264 Supra note 19 paras 98-99.
265 See supra note 188 at 4. Boonzaier quoted Cameron J and Froneman J’s dissenting judgement in Buffalo City para 147 that to overlook an unreasonable delay in the case before them was tantamount to granting the Municipality a ”free pass by overlooking an unreasonable delay.”
Khamalo test and, as a result, eradicated the delay rule. There has been no declaration of the delay rule to be inconsistent with the Constitution. I maintain that there is a legitimate purpose served by the rules in administrative law. Its eradication was an unintended consequence of the court’s invoking of section 172(1)(a). Hoexter and Penfold argue that the duty to declare law or conduct invalid under section 172(1)(a) has never been understood or perceived to be absolute.266 In Buffalo City, Cameron J and Froneman J for the minority, in my view, correctly suggested that it is not necessary to invoke section 172(1)(a) to arrive at a just outcome.267 They argued that the public interest would not be served if the respondent is deprived of its contractual gains and only gets awarded incurred expenses; that the procedural limitations to overlooking the unreasonable delay achieve the same just and equitable outcome.268
Section 173269 grants the Constitutional Court, Supreme Court of Appeal and Hight Courts inherent power to protect and regulate their own process and to develop the common law, considering the interest of justice. The court in Gijima does not rely on section 173. It is my view that court should exercise caution when developing the common law. Previously in Part 2, I argued the development of the common law lies in the court’s inherent power, however when doing so, it should be mindful as not to eradicate important procedural rules such as the delay rule in the process. I place an emphasis that the court is within its power to alter the Khumalo test if it sees fit, however the unintended eradication of the delay rule has far reaching consequences as pointed out previously. I have argued that the interest of justice can be best served when a balance is struck between developing the common law and preserving the delay rule. It is my view that just like every other provision in the Constitution, section 173 is not
266 Supra note 6 at 740.
267 Supra note 19 para 150.
268 Ibid para 149.
269 S 173 of the Constitution.
intended to be absolute, even though not expressly indicated so in the Constitution.270 I am of view that the Constitutional Court should exercise a measure of caution when developing the common law, more specially when a lawful common law principle whose existence remains relevant and serves a legitimate purpose is at stake of eradication. Unlimited judicial discretion is undesirable for any democracy and the rule of law. Moreover, caution should be exercised when there is an alternative way, with less ramifications, of reaching a desired outcome. The Constitution does not value legal uncertainty or unrestricted judicial authority, as Harms properly notes in his article271
A school of thought that Harms discusses is that the Bill of Rights seems to have granted the judiciary a hunting license on the common law and that unlimited judicial discretion allows precedents to be ignored.272 He argues that the Constitution brightens up the legal landscape but is not blinding. It does not create an opportunity for the common law to be attacked, but instead it creates rights. He correctly points out that the Constitution does not place a "machete" in judges’ hands to behead but harmonises the law.273 Some disputes can be addressed by the intervention of the law, and some need the intervention of the legislature. For the country to function properly, all three spheres need to work together while observing the separation of powers.
5.6 Intervention by the Legislature
Navsa ADJ, writing a unanimous judgement in National Education Health and Allied Workers Union, suggested that the legislature may need to intervene in a constitutionally
270 The Constitutional Court in Gijima did not expressly invoke section 173. However, I previously argued that while developing the common law in terms of s 173, the court eradicated the delay rule.
271 LTC Harms “Development of the common law in view of sections 39(2) and 173 of the Constitution” (2004) 7 PELJ at 2. The initial journal is written in Afrikaans, referenced sections are sourced from a summarised English version of the document.
272 bid at 1.
273 Ibid.
permissible manner to shed light on how delay should impact all judicial reviews (including state self-reviews brought under the principle of legality).274 I welcome Navsa’s suggestion of legislature intervention. Currently, the law is that all judicial reviews must be brought within a reasonable time. PAJA is precise that within 180 days or the delay is deemed to be reasonable.
What needs more focus, I suggest, is the criteria used to determine condonation. I suggest that delayed reviews should only be condoned in exceptional circumstances, and there should be a set criterion to satisfy.
Moreover, there are broader procurement law reforms needed. 275A recent Auditor-General report detailed the key issues with supply chain management systems. First, the absence of written quotations was first noted, which the report found the deviation to be unreasonable and unjustified. The second was procuring from suppliers without SARS tax clearance. Thirdly, competitive bids are not invited, and lastly, the preference point system is not applied. The report states that little action has been taken to address these concerns, which have been raised year after year.276 The fact that these findings are a recurring phenomenon, one can reasonably assume clear unwillingness from officials that might be motivated by corruption or sheer ignorance. A recent judgement of the Central Energy Fund that was decided as recently as 2020 dealt with the private negotiation of contracts for selling state crude oil to three international companies, with no tender binding process. The court held that the absence of a public tendering process was a breeding ground for corruption.277 The fact that these findings are picked up annually reveals that existing
274 See supra note 170 para 47.
275 Procurement law reforms do not strictly go to delayed self-reviews , however more stricter controls will reduce the number of delayed self-serving reviews requiring judicial intervention. See Part 4 where it was argued that courts have been confronted with a concerning string of cases where state organs attempts to set aside procurement decisions previously taken.
276 Auditor General of South Africa PFMA General Report 2021-2021 “Increased relevance in a changing world” available at
thttps://www.agsa.co.za/Portals/0/Reports/PFMA/202021/Consolidated%20PFMA%20General%20Report%202 020-21%20-%20FINAL%208%20December.pdf?ver=2021-12-08-114517-993 (accessed : 22 April 2022).
277 Supra para 119 para 210.
measurers are clearly not that effective, thus reforms are needed.278 An example would be reforms to the current Public Finance Management Act279 to contain stricter controls of state finances and more punitive powers granted to the Auditor General. State organs must have effective oversight and early-detection mechanisms to prevent fraud and corruption and eradicate loopholes within the system. Having in-house control mechanisms will result in fewer unlawful contracting and flouted procurement processes, which may lead to fewer review cases reaching the court to get the contracts set aside. Buffalo City suggests that effective oversight of service delivery projects should be one of the core responsibilities within a procurement process.280 Judicial intervention is not the only solution because it does not get to the crux of the problem. Without state-organ level intervention, courts will be inundated with delayed self- review cases. Proper procurement processes will ensure the finality of state decisions because things would have been done correctly the first time around. As noted previously, public procurement is not expected to be flawless, but those mistakes should not warrant setting aside decisions.281 Service providers contracting with the state can also be re- assured and can take the state into their confidence. There will also be little room for opportunistic reviews as things will have been done according to the book. The courts should be sympathetic to self-reviews where the intention is to clean house other than for self- serving reasons. All those things will be a win-win for the rule of law and service delivery.
5.7 Conclusion
This section has put forward suggestions aimed at minimising the implications of the Gijima judgement. There is no single solution, but a consolidated approach is suggested. Boonzaier
278 See supra note 255 at 139 ,where Vos sets out legislative interventions that has been adopted by South Africa, aimed at curing corruption in the public procurement space.
279 Public Finance Management Act 1 of 1999.
280 Supra note 19 para 81.
281 See note 210 above, where Altech Radio Holdings’ principle that does not expect public procurement to be flawless, and not every flaw requires the contract to be set aside was discussed.
contends that, while delayed self-serving cases are bound to fail on the merits, better safeguards are required to stem the epidemic.282 The first step is to overturn Gijima. The second suggestion is to develop a good-faith principle like the clean-hands doctrine suggested by Boonzaier. The third suggestion is that the narrative should be replaced by the refusal of courts to be used as vehicles to flouting of public procurement principles, and courts being sympathetic only to attempts toward good and clean governance. Courts must be perceived to have zero tolerance for mala fide self-serving reviews. Fourthly, for courts to exercise a measure of restraint when developing the common law in terms of section 172 and to not perceive section 173 as absolute.
Lastly, legislative intervention at the state department level might be the cure for the root cause of the disregard of public procurement principles, which might lead to fewer delayed self- serving cases confronting courts. Part 2 discussed the need for continued relevance of the delay rule in administrative law. I argued that the delay rule serves a legitimate purpose of giving effect to certainty and finality of decisions and section 217 of the Constitution. Less opportunistic self-reviews will be a win-win for the rule of law and those contracting with the state might be granted a level of comfort, which in turn can contribute to clean governance and improved service delivery.
282 Supra note 188 at 4.
PART 6 CONCLUSION
South Africa’s administrative law is a hybrid of common law and PAJA.283 Since 1994, South Africa became a democratic state and all that conflicts with the Constitution must be set aside. Section 237284 of the Constitution requires all constitutional obligations to be carried out without diligence and without delay. This paper has argued that the delay rule is not only a procedural bar but also ensures finality of decisions, which is a principle of the rule of law.
While developing the common law, the Constitutional Court in Gijima, when faced with a delayed self-review application, held that the court may nonetheless be forced to declare a decision unlawful in accordance with section 172(1)(a) of the Constitution even if there is no basis for overlooking the unreasonableness of the delay. This ran counter to the Khumalo test, which was endorsed by the Constitutional Court. In Khumalo, the court held that if a court refuses to overlook an unreasonable delay, it cannot entertain the review application. The delay validated the decision.
The main problem with the Gijima judgement is its eradication of the delay rule. This observation is commonly shared by De Beer, Hoexter, and Penfold. Gijima renders the second leg of the Khumalo test redundant because, despite what the answer is to the second leg, a court may nevertheless set the decision aside by invoking section 172. The Gijima approach to delay is synonymous with the court overlooking an unreasonable delay and entertaining the review application, ultimately setting aside an impugned decision. This thus eradicates the relevance of the delay rule. I have argued that Gijima’s eradication of the delay rule is three- fold first, it promotes arbitrary and opportunistic attempts by state officials to undo decisions. This is illustrated by a disturbing string of cases where state officials seek to review and set
283 Act 3 of 2000.
284 Act 108 of 1996.
aside contracts in which a considerable period has lapsed, and the contract has run its course.
Secondly, it perpetuates disregard for procurement policies by state officials. The Gijima judgement makes it easier for state organs to set aside their decisions when, in most cases, they have run their course. Lastly, it undermines the finality and certainty of decisions. It has been argued that the implications of this point have the possibility of deterring suppliers from contracting with the state, which ultimately might negatively affect service delivery.
The Constitutional Court has failed to streamline an approach to delayed self-review while maintaining the rules underlying delay and developing the common law. This lacunae has been shown to cause confusion in the lower courts, as illustrated by incorrect interpretation or avoidance of the Gijima principle.
I have argued that the delay rule continues to be relevant and necessary in administrative law as it complements section 217 and section 237 of the Constitution and ensures finality of decisions, which is a principle of the rule of law.
While acknowledging that there is no magic all-in-one solution for these problems, several suggestions have been put forward to curb the counter effects. The first is to overturn Gijima, as it has been the source of controversy and continues to cause confusion in lower courts. A good-faith principle has been suggested to be part of an assessment the court embarks on to determine the real intention behind launching the self-reviews by organs of state. Courts should also be intentional about developing a narrative where courts refuse to be used as vehicles by scrupulous state officials. The fourth suggestion is for the courts to exercise caution in their application of sections 172 and 173 respectively. Finally, intervention by the legislature was also invited to streamline laws, policies, and consequence management to curb flouting of public procurement policies. That collectively, should see a reduction in opportunistic delayed self-serving reviews confronting courts.